Slashdot videos: Now with more Slashdot!

View

Discuss

Share

We've improved Slashdot's video section; now you can view our video interviews, product close-ups and site visits with all the usual Slashdot options to comment, share, etc. No more walled garden! It's a work in progress -- we hope you'll check it out (Learn more about the recent updates).

An anonymous reader submits "Zophar's Domain is reporting that the CEO of commerical multi-arcade kit seller UltraCade has applied to trademark the name and logo of the ubiquitous open-source multi-arcade emulator MAME and is planning to sue MAME's authors."Update: 02/21 13:26 GMT by T: UltraCade Technologies CEO David R. Foley contacted Slashdot with an emailed explanation of the filing, reproduced below at his request. Update: 02/21 18:16 GMT by T: Please note that Foley's email specifically states that "There have been no lawsuits filed against any of the M.A.M.E. authors, and there have been no claims towards the open source engine, nor will there be."

"Subject: I would hope that you post this to correct your misstated comments on slash dot
Date: Mon, 21 Feb 2005 01:27:43 -0800

Like most things that are spread by rumor, the facts about me, UltraCade
Technologies, and the M.A.M.E. emulation system are quite distorted. I will
try and educate anyone who cares to listen about the reality of our
marketplace and what we are doing and what we are not. Simply put, we are
making an effort to stamp out the commercial sales of M.A.M.E. based systems
that advertise the ability to play thousands of games while relying on the
customer to obtain the ROMs which can not legally be obtained. What we are
not doing is trying to claim ownership of the M.A.M.E. open source emulator
or sue its authors. We are concerned about the commercial marketplace, and
not the readers of the many M.A.M.E. user groups and forums.

I have been working on emulation technology since the mid 80's when I did
work on an emulation project in college. In 1994, while working on games
for companies like Sega and Williams, we developed an emulation of the
arcade games Joust, Defender and Robotron that ran on a Sega Genesis. In
1996, we started the Lucky 8 project which turned into the UltraCade
project. In 1998 we were one of the first companies to acquire the rights to
classic arcade games from various publishers. We have licensed games from
several manufacturers including Capcom, Jaleco, Taito, Stern, Incredible
Technologies, Midway, Atari and more. We have started several projects and
built prototypes for companies like Sega, based on technology that was
licensed from authors from the emulation community. We have licensed
technology from many of the communities programmers, paying them to use
their code in our products and demonstrations. We have been the leader of
the retro arcade movement, and have invested millions of dollars creating a
market for retro games. UltraCade was the first successful multi-game
arcade machine combining many of the old classics. We further enhanced the
market by creating Arcade Legends, our consumer version of the UltraCade
product. We have also paid hundreds of thousands of dollars in licensing
fees to have the right to sell our games.

In the past couple of years, there has been a huge wave of resellers
competing with our UltraCade and Arcade Legends products. They build a
similar style cabinet, install a PC in the machine, load M.A.M.E., and sell
it for a very low price. Lower than we could ever offer our machines for
sale. How? Quite Simple. They profit by stealing others work. If you
look at the web sites, and read the eBay ads they offer machines that "Play
over 4,000 Classic Arcade Games" They then try and skirt the law by
pretending that they are not promoting piracy of these same 4,000 games with
statements like "we don't load the ROMs" but of course, almost all of them
do. The others that don't, they provide you with an instruction sheet with
a link to several web sites where you can illegally download the ROMs, or
provide you with the contact information for a CD/DVD duplication house that
will sell you a set of ROMs for all 4,000 games for less than $200. Would
anyone really buy this arcade machine if they knew that there was no legal
way for them to run over 99% of the games that they were promised, I don't
think so, and if you really look at this without emotion, I'm sure you would
agree. These companies are simply selling the promise of thousands of games
on a machine that can not possibly run them legally. I sometimes hear the
argument, "well, I could go on eBay and buy up all of these games and then
run it", and while plausible, it certainly would not be anywhere near cost
effective, and again, if the customer knew that to legally operate these
games, they have to spend thousands of dollars buying legal ROMs I seriously
doubt that they would consider purchasing a M.A.M.E. machine. Anyone
reading this email thread is an intelligent person, and if they put emotions
aside, they will realize that what we are saying about selling M.A.M.E.
machines and the promise of getting 4,000 games for the average consumer
can't possibly happen. Unlike most of you reading this, the average consumer
looking to buy a machine for their game room has no idea how emulation
works, or what is legal and illegal to do. To them, they read an
advertisement on a website or on eBay and compare our product with 50 games
or an ad for a machine that promises thousands of games, with the promise of
instructions about how to obtain those games. Of course, in this skewed
environment the average consumer would gravitate towards the thousands of
games machine, not realizing that the software and the games are unlicensed
and illegal to play. Most consumers who are pointed at a web site selling a
7 DVD set of ROMs have no idea that this is an act of piracy, they were
simply instructed to do this by the person selling them their arcade
cabinet, and told this is how you get the games.

Now that we have attempted to take legal recourse to prevent illegal
competition, the same people, who steal the work of the M.A.M.E. authors,
and then profit by selling machines that have no value without the pirated
games being made available, turn around and cry foul when we call them on
their ways. They run to the M.A.M.E. discussion forums and spread rumors
about UltraCade suing the authors of M.A.M.E. or stealing the M.A.M.E.
engine. I'm amazed at the response of the community, a community that is
being whipped into action by the same people who are stealing and profiting
from them and they're efforts. Many people have reacted with hate mail
without even considering to look at the facts of the situation, or to
realize who is spreading the rumors. They are being spread by those who
wish to profit by selling unlicensed games.

The simple fact is that we are attempting to stop the tide of illegal arcade
machines, and the promotion of unlicensed games. The M.A.M.E. platform,
while a technical marvel, consists of many violations of copyrights and
trademarks. The authors have always stated in the documentation that it was
not put into the public domain to steal from the game authors or publishers,
and they have always been hands off about how to obtain the ROMs. They have
also clearly stated that it is not to be used for commercial gains. A
majority of the publishers who own the copyrighted material have not paid
much attention to this marketplace, as until recently it has not had a huge
commercial impact. But now, there are websites and eBay sellers selling
machines that directly compete with legitimate publishers like us who
publish games from Capcom, Taito, Midway, Atari and others, or publishers
like Namco that publish Ms. Pac-Man/Galaga or the Donkey Kong/Mario Bros.
machines.

Of the many thousands of games that M.A.M.E. supports, only a minute
fraction of them can legally be played on a M.A.M.E. equipped machine, and
many can not. There are many fallacies about the legality of owning ROMs
and how you can play the game. Many people claim that they have a board set
and therefore they can download as many ROMs as they like. The law is very
strict. You can transfer the image from the actual original ROM chips,
which you legally own, to another piece of hardware, provided that you
actually transfer the code from the chips. Just having a board sitting
around, and saying I have the right to play it is not the case. Many people
point to StarROMs and say that they can then sell the games with the ROMs
installed. This is not the case either. StarROMs license prohibits the
resale of the game licenses, and only the end user can purchase these ROM
images, resellers can not. Our market is further plagued by the rash of 4
in 1, 9 in 1, 24 in 1 39 in 1 and the new 300 in 1 "multicade" boards.
These boards come from Taiwan and Hong Kong and contain illegal copies of
the ROMs of several games.

This is a complex case amongst companies that are trying to make it about
UltraCade stealing something from the M.A.M.E. team. That is not what this
is about. This is simply UltraCade Technologies and other publishers doing
whatever it takes to protect our commercial interests and prevent other
companies from stealing our market by capitalizing on unlicensed games and
selling products that only have value when coupled with illegally obtained
games. Our application towards a trademark is to simply prevent anyone from
commercially marketing an illegal product, nothing more. There have been no
lawsuits filed against any of the M.A.M.E. authors, and there have been no
claims towards the open source engine, nor will there be We are simply
protecting our commercial market, and nothing more. We have no interest in
the hobby community. We have no interest in the open source project. Our
goal is to simply stop the rampant piracy in our marketplace, and we will
use every means at our disposal to do so.

I welcome open discussions about this situation, and will respond to
legitimate communications or questions.

His motivation for registering the trademark might not have as much to do with defrauding the MAME community as the Slashdot article speculates... this guy is well known for taking down eBay auctions for roms and MAME-supported hardware that compete with his. If he is awarded this trademark, this would give him even more leverage, since no one would be able use the official MAME logo on any auction site or web store, even if they were just selling their own homebrew arcade stick.

Wouldn't he then be defrauding the MAME community by saying, fraudulently, "I'm MAME"?

Very astute. This is effectively what UltraCade is doing by trying to trademark the term MAME.

Now, I am definitely not nearly as corporation-paranoid as even the average Slashdot member - I would usually take the company at face value in such statements. The problem here is that the stated goal has nothing to do with the stated action. Trademarking MAME will not help UltraCade bust competitors, for several reasons:

The proper grounds for evicting illegal manufacturers is copyright infringement, not trademark infringement. And that's very easy to do, since the "official" channels of Internet policing (courts and ISPs) are very pro-copyright - a simple email to the site hosting the content is enough to get some hosting yanked. (In fact, this is exactly how the MAME community has policed commercial sales of MAME [with ROMs] on eBay - it's a routine occurrence, and the "cease-and-desist" notice is efficient and effective.) Why anyone thinks trademark infringement would provide more leverage than copyright infringement is something of a mystery.

The MAME trademark will only be effective in the U.S. The world isn't nearly as unified about the enforcement of trademark law as they are for copyright (and patent) law. Even trying to enforce the trademark in Canada is likely to be difficult.

Any illegal-software-sales company that wants to avoid a trademark claim for using MAME can simply... uh... not use the MAME name in its adverts. Most n00b-idiot purchasers of such hardware don't know what "MAME" is, anyway. Their attention latches onto "4,000 arcade games in cabinet for $200!" - they don't know the term "MAME" anyway.

For these reasons, I must doubt UltraCade's stated reason for seeking a trademark on the term MAME. So what's really going on here? More likely, and reading between the lines here, UltraCade wants to block anyone else from selling a cabinet bearing the word "MAME" - even if it's solely a cabinet (with no emulation software of any kind embedded.) This is their true "competition," and it has nothing to do with copyright. There's nothing illegal about selling a hunk of wood and circuitry... unless, of course, there's a trademark issue. This is likely their goal.

Hmm, a dodgy company looking to frustrate its own market for its own gain - could the emulation community be seeing the emergence of is own SCO?

As a final note, I'm curious whether this inaccurate attempt to monopolize a market by laying an inaccurate trademark claim might violate the Sherman Antitrust Act.

The only person who has standing to bring a copyright violation claim is the copyright holder. UltraCade's lawyers must believe that, in order to be successful against those who are competing against it unfairly, they need standing to sue. Hence, registering the name makes a certain amount of sense.

Well, civil procedure issues are probably moot, because the alleged infringers are not interested in having the legality of their "businesses" resolved. Any "company" that vends cabinets loaded with MAME and 4,000 ROMs is probably not going to appear in court. (If it came to that, MAME would have standing - and much stronger grounds - due to infringement of its own copyright.)

This is strictly a police issue: how can we (the legitimate emulation community, including [for the moment] UltraCade) get their auctions canceled, their webspace yanked, their PayPal accounts closed, etc.? And this has nothing to do with trademark law. In fact, bringing in this unrelated body of law only confuses the issue.

The UltraCade lawyers aren't particularly sneaky or clever. They gambled that they couldn't be effective any other way, and apparently ignored the risk of community/market backlash.

This highlights a key point: If UltraCade legitimately wanted to use the MAME trademark as it alleges, why didn't they bring this up with MAME before now? If I wanted to be a guardian angel and spend resources protecting your rights, I think I might mention that plan to you at some point. The post-hoc nature of this justification severely limits its credibility.

Seems to me the application should indeed be refused on this basis, though expecting an examiner to work that out might be asking too much. The idea is that it's deceptively misdescriptive [uspto.gov] and therefore unregistrable. The only problem I see here is that I'm not sure that MAME is descriptive of the software that we know by that name- that MAME is indeed a mark, just not Foley's mark.

David Foley provides a reasoning at least for his actions. While it may not be the correct way of going about it, it is how he plans to fight his "competitors" who use illegal software and piracy methods.
I'm not saying that I'm in total agreement with him but I do see his side of things. Perhaps there is another way to deal with it.....?

I hope there's another way to deal with it because what he's doing right now is filing a fraudulent trademark application. I appreciate that he's in a bind, but breaking one law to prevent others from breaking another is not generally going to fly. I mean, if you commit assault to prevent a murder, that's one thing, but committing trademark fraud to prevent others from committing copyright fraud? I don't think so.

And just in case it is less than clear, this -is- trademark fraud. To apply for a trademark, you have to fill out a form which includes statements to the effect of "we have no knowledge of anyone else using this trademark in the same field of business". In order to apply for this trademark, they have to lie on the form, which is fraud.

Unfortunately, the PDF is currently down, but I assume it says something similar to the email Foley sent to the Slashdot editors (which has been posted in the story since then). If this is true, then here is a summary of what he said:

1) Foley has licensed ROMs from many of the publishers.
2) Foley uses MAME and his licenses to offer gaming machines for sale.
3) Pirates do not have licensed ROMs from any of the publishers.
4) Pirates use MAME and the illegal ROMs to offer gaming machines for sale.
5) The Pirates' gaming machines are cheaper than Foley's and offer more games than Foley's.
6) To combat the Pirates' (illegal) competition, Foley is trademarking MAME.

While I can sympathize with Foley's concerns about Pirates freely distributing illegal ROMs, the simply fact of the matter is that he does NOT own MAME, has no affiliation to MAME, and has no right to take control of the MAME name, logo, or to trademark them. His application for the trademark is fraudulent. He indicates (in a vague fashion) that he does not intend to sue the creators of MAME, but then he goes on to say this:

This is simply UltraCade Technologies and other publishers doing whatever it takes to protect our commercial interests and prevent other companies from stealing our market by capitalizing on unlicensed games and selling products that only have value when coupled with illegally obtained games. (Bold emphasis mine.)

"... selling products that only have value when coupled with illegally obtained games." - Hold on there!!! So, if I want to sell a box loaded with MAME, you're going to come after me? Right now he seems to be targeting only those that provide "instructions" about how to get illegal ROMs. But as with everything else in the world... the next thing you know he will be going after people who just want to create custom MAME cabinets and sell them.

Our recent actions to protect our products have met with a lot of controversy. Many
people have been quick to judge and make accusations about what we are attempting to
do, and what we have already done. It is my understanding that the spirit of the
M.A.M.E. community is ""M.A.M.E.'s purpose is to preserve these decades of videogame
history." It is further my understanding that "Selling either is not allowed" with
regards to M.A.M.E.

Given this understanding, we are willing to help promote these goals and work to provide
the original authors with the protection they deserve. Our goal is to prevent the
commercial offering of machines with illegally obtained ROMs. I believe our goals can
work in parallel.

Furthermore, we have a long standing relationship with many publishers of many games,
and we are constantly working to obtain more and more licenses for these games.

Our goal in filing the trademark for the name M.A.M.E. was simply to give us leverage
against those companies that promote and sell machines with M.A.M.E. installed on it,
and more importantly, provide their customers with the means to illegally obtain the
ROMs. This doesn't help our sales of our products. This doesn't help the community in
general.

We have no desire to use the M.A.M.E. name or logos; we simply wish to find ways to
prevent illegal distribution of classic arcade games. We will be happy to cancel our
application and work with the M.A.M.E. team to assign it to its rightful owners; however
we do want to prevent it from being awarded to someone that intends to use it
commercially.

I am available to work with the community to ensure that this happens, and to help get
more games made available to the community at a reasonable price.

David R. Foley
CEO
UltraCade Technologies

So the whole problem could theoretically be solved by giving it to someone appropriate.

ROM images are copyrighted material. Most of them cannot be distributed freely. Distribution of MAME on the same physical medium as illegal copies of ROM images is strictly forbidden. You are not allowed to distribute MAME in any form if you sell, advertise, or publicize illegal CD-ROMs or other media containing ROM images. This restriction applies even if you don't make money, directly or indirectly, from those activities. You are allowed to make ROMs and MAME available for download on the same website, but only if you warn users about the ROMs's copyright status, and make it clear that users must not download ROMs unless they are legally entitled to do so.

IV. Source Code Distribution

If you distribute the binary (compiled) version of MAME, you should also distribute the source code. If you can't do that, you must provide a link to a site where the source can be obtained.

Sorry, can't trademark "being an asshat." Trademarks cover a design or a word which accompanies a series of the owner's publications. Trademarks are only in force as long as they are vigorously enforced by the owner.

"Being an asshat" would be a patent. Patents cover a process, and have a mostly fixed timespan. Scott McNealy's patent on being an asshat has finally expired, and now the process of being an asshat has been added to the public domain.

The problem is that the Patent and Trademark Office takes the perspective that if the patent or trademark is wrong, it'll be sorted out in court, while the court takes the perspective that there must be some creedence to the patent or tradmark since the USPTO granted it.

MAME on its own isn't illegal and isn't ripping off of any other's work. You can use it completely legally, either by ripping an arcade board you own, or by buying legal ROMs on Starroms or the Capcom ones that come for free with the gear from HanaHo. You can also use the couple of ROMs that are freely available on mame.net, courtesy of their own copyright owners.

So what you're refering to is piracy from MAME's users. Should the MAME devteam be punished because of what others do with their hard work? Don't think so.

An interesting rebuttal to be sure.Still, the crux of the issue is that you're landing a heavy boot square in the domain of the MAME authors.You make allusion to them infringing on proprietary copyright and patents. And, in the great tradition of people quoting this, then fail to mention any of them. Please, if you can prove MAME is indeed infringing on Patent and Copyright, please inform us of your findings.Downloading a ROM for free, yes, that is indeed copyright infringement (not stealing, as you represent your company, please be semantically correct).But, it seems that, to prevent 'unfair' competition (people providing a harness that can play games on it, if someone purchases a ROM, for cheaper than you can provide), you then decide to put a claim on a name made by others.While technically legal, you are, in spirit, no better than someone who infringes on other trademarks.I've heard of MAME (stopped using it, as I couldn't find somewhere to legally purchase the ROMS, and no vendor seemed interested in that activity), but I've never heard of your products.This absolutely reeks of a company with little market recognition seeking to acquire a name by subterfuge and bad practice.

I would say, if you have an issue with people selling these machines for less than you can produce legitimate ones, you should be working hand in hand with the MAME authors, and providing them with legal backup to chase the makers of these license infringing machines, giving them a stronger position, rather than trying to subvert the name and position.

Much as you may believe you're legally able to do this, I think your grasp of the aftereffects of doing this are lacking. Many emulation enthusiasts may avoid you on principle. I know I will.I look upon you as a hypocrite. While justifying your move as one to prevent 'theft' of a piece of 'intellectual property' (name and code of a ROM), you 'steal' someone else's property (their name, which is the whole umbrella of their project, thus subverting the project itself).Your 'plan' seems nothing more than "Someone's taking from what we want, so we'll take something from someone completely different.".

Work with the MAME group, and you may well get good results, if you treat them well.Work against them, and one name change and a few months later, you'll have the same problem, with a massive PR problem on your hands.

I have a business problem. People are selling pirated ROMS for less then I can sell them legally. My problems would go away if I took legal control of your logo and trademark. Can't you see this is a good thing, for me?

Regardless of intention, trying to trademark something you have no right to so you can "only sue the bad guys" is still illegal. You're taking the rights to something you don't own. It looks like your approach to dealing with the "unfair competition" is to sue them for trademark infringement. That has nothing to do with the legality of distrubuting arcade machines, the bulk of your arguement for your actions.

If the MAME licence indicates that it is indeed illegal to profit from selling arcade machines w

Star ROMs [starroms.com] Our classic arcade ROM database contains over 25 games at prices as low as $2 per title!

StarROMs was established to provide an inexpensive and legal source for classic video games. These are the original games exactly as you played them in the arcade. Now you can legally download the ROM and play the game at home, as often as you like, with your favorite emulator!

I don't know anything about Arcade game ROMs. I found this after Googling for about 5 seconds. I'm sure there are many more ways of getting ROMs legally. So this invalidates UltraCade's argument in that forum post. I wish parent had posted the link to the forum thread as, I'm sure, there would have been many replies to UltraCade's post, stating my point.

For a long time I was happy that Ultracade was attempting to bring back artwork and designs long forgotten, threatening to disappear into the void. They're the last refuge for such games as Strider and Mercs, classics that shouldn't be allowed to disappear from the legal scene in this world. They are hardcore gamers who appreciate the art.

But filing for a trademark on MAME? The project that they got their idea from? That's just low. I could see them trying to sue MAME out of existence for being illegal, promoting piracy, and cutting into the profits of a corporation. But trademark?

Well, I sent the following email to the trademark office. I suggest others do the same (and No, I did not use my slashdot account name as the "From" identity, I used my real name, and my real jobtitle (CEO of services and software firm)

I write to you with respect to trademark application 76627578 - "MAME
MULTIPLE ARCADE EMULATOR".

I would like to draw your attention to the fact that I am longstanding
user of a product that goes by the same name, sporting the same logo. I
can, however, assure you that as far as I am aware, there is no
affiliation between the original authors of MAME, and the individual or
organisation attempting to trademark this name and logo.

You may wish to note that the marque in question appears to have been
designed by an unrelated individual, and appears to have been under
copyright since 2003. I refer you to
http://www.oscarcontrols.com/gallery01.htm
Please note the following limited usage statement on the quoted page:

"THE ABOVE DOWNLOADABLE IMAGES ARE PROVIDED IN CONFIDENCE FOR THE
LIMITED PURPOSE FOR PERSONAL PRINTING AND ARE NOT TO BE REPRODUCED NOR
COPIED IN WHOLE OR IN PART NOR LOANED OR OTHERWISE COMMUNICATED TO ANY
THIRD PARTY, NOR USED IN ANY MANNER WITHOUT PRIOR WRITTEN CONSENT FROM
OSCAR CONTROLS."

Clearly, the quoted marque application seems to violate these terms of
usage.

Furthermore, to the best of my knowledge, said logo has been in use, for
many years, in a commercial manner in many forms. First of all, I would
like to inform you that at http://www.mamemarquees.com/ the marque
itself is for sale in the form of stick-on marquees. mamemarquees.com is
one of many sites selling a similar service. Moreover, many sites, such
as http://www.mameworld.com rely in part on the MAME marque for
advertisement revenue. In other words, there is widespread - although
low-level - commercial use of the MAME marque, in logo as well as text
form.

In closing, I would like to inform you that MAME is a so-called "Open
Source" project, meaning that the project, the work performed by this
project, and any arts, intellectual properties, and other related
results of productive work has mainly been performed by individuals on a
volunteer basis. These people volunteer their time, skills, and
knowledge out of passion for what they do, and make their core work -
The MAME application suite - available free of charge, in source code
form, for all to use.

This is very similar to making the work available within the public
domain, but not exactly, since Open Source Software typically places
some obligations onto the user in terms of under what circumstances the
work may be re-distributed. This is to protect the work from being
"stolen". More information about open source software is available at
http://www.opensource.org/ The precise license terms of the MAME body of
work can be found here: http://www.mame.net/readme.html

I trust to have given you plenty of information to assist in your
handling of the stated application, and am sure that in the face of the
information provided to you by myself, and no doubt others, that the
said application will be duly rejected. Should you require any
adittional information or comments, please don't hesitate to contact me.

Kind Regards,

Plenty of mails like this will remove any excuse they would have in actually granting the trademark. Please be sure to include both the lawyer as well as the applicant in the mail.

That is a very misleading post. The stuff you refer to is acutally a post-examination process, and what you want to do is get to the review during or before the review process. Which is what I did. There are numerous places where in the regulations that make this thing fall over, and this [uspto.gov] is a good a place to start as any. There are many others though.

Point is, that while the examiner can claim to grant the marque in good faith if he is unaware of any existance of any connection - the mail I (and by now many others) have sent makes it clear to the examiner that there is no basis in trademark regulation to allow this marque to be approved. This shifts the burden of proof back to the applicant, something he would be hard pressed to do.

Doesn't one have to own the trademark before something is created in its name in order to sue the creators of the something? Otherwise I'd be able to trademark the word bittorrent, and sue the creator. Could someone explain just how this is going to work to me?

Doesn't one have to own the trademark before something is created in its name in order to sue the creators of the something? Otherwise I'd be able to trademark the word bittorrent, and sue the creator. Could someone explain just how this is going to work to me?

Easy. Chewbacca is a wookie from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about that; that does not make sense. Why would a wookie, an 8 foot tall wookie, want to live on Endor with a bunch of two foot tall ewoks? That does not make sense! But more importantly, you have to ask yourself, 'what does that have to do with this case?' Nothing. Ladies and Gentlemen, it has nothing to do with this case. It does not make sense!

I think Chewie's penis is probably larger than most Ewok females. That could lead to some dates ending very awkwardly, e.g. "Sorry Mr. Bundlefluff, but it appears as though I have impaled your daughter on my engorged Kashyyk love muscle."

Doesn't one have to own the trademark before something is created in its name in order to sue the creators of the something?

Actually, the way you establish ownership of a trademark is by using it. Registering it is just a way of documenting your claim that you own it. So the guy who invented Bittorrent can claim that he already owns the trademark, whether he's registered it or not.

No. Under trademark law there is a concept known as `passing off'. If you market a product with a name / logo that is sufficiently similar to an existing trademark for there to be confusion between the two then you are regarded in law as attempting to pass off your product as being affiliated with the trademark owner and are liable for prosecution. If the owner of the trademark is aware of this and fails to prosecute then they may be unable to do so at a later date, because the trademark will have become a generic term.

There's a restaurant near my home called Wally's. While I've never been there, it's pretty much impossible to miss as it has a big golden W in the exact same proportion as the McD's arch, but upside down.

I think any court would conclude that consumers could tell an M from a W.

How's that so if they managed to force Lindows to change their name? Can you please enlighten me on this one?
They started suing Lindows in country after country, and Lindows decided they didn't want to have to fight the case in every single nation on earth and gave up. Lindows won their case in the United States.

MAME doesn't have the same level of widespread use as Xerox Machine, or Kleenex in the general population. But, a much greater percentage of the population blows their noses than use arcade emulators.

If we restrict the thought to only the group of people who would use any sort of arcade emulator, then yes, pretty much all of them are well aware of the name. What's more, nobody uses it in a general way. I've never heard anybody refer to SNES9x as "a type of MAME" or anything like that. I have only ever

Wait a second. Doesn't US Copyright law take precedent here. Correct me if i'm wrong, but aren't all works copyrighted by default. Couldnt the obvious prior art holders sue ultracade for any usage of their name.

This needs to be a FAQ on slashdot itself;-). Trademark law, patent law, and copyright law are three different things, all often grouped together under the problematic term "intellectual property" (which is a loaded term, of course).

In this case, the topic is trademark law. Trademarks are lost if the holder allows the name to become a generic term (like kleenex, for example). I'm not sure if you have to be the first person to use a term in a particular domain to trademark it, but I imagine you do. (The concept of "prior art" refers to patents only.)

Even though this guy is applying for a Trademark, he's applying for a trademark on the logo. The logo artwork is copyright, and any inappropriate use if it would be a violation of the artist's copyright. Tradmarking artwork shouldn't trump Copyright. I'd expect that most people interested in getting a logo tradmarked would make sure that they had the copyrights locked down first.

In other words: if he succeeds in getting the trademark on Mame, he could end up with a registered logo that he's at risk of being sued for if he actually uses it in public.
(It'd almost be funny to see him being sued for using it in his first 'cease and decist' letter)

That having been said, sending the USPTO an email about this application with a well-chosen URL from the WayBack machine might torpedo this application (at least I hope so -- IANAL)
__________________

Btw: With SCOXE at risk of being delisted, Darl McBride may be looking for somewhere else to be a public puncing bag.

MAME logo information [mame.net]... the logo's been around since at least 1999 (can't remember if it's been around even longer)... maybe Chemical and Exodus3D can do something directly. Additionally, there have been a large number of magazine articles about MAME since it first came out in 1997, so there is plenty of printed evidence, should it have to come to that.

You know, the biggest problem with emulation nowadays is ego, and apparently the egos of the Ultracade creators got too big.

As a former ZD employee, I've seen this far too much in emulation, but it's never gone to this degree. This is a very evil way to get a point across, and I really hope, if this actually happens, that a few makers of these arcade games out and sue Ultracade for pulling this shit.

Why the hell would you take out the people who made your bread and butter? All that's going to happen is MAME is going to come out under a different name and be designed in such a way that it won't be compatible with Ultracade arcade boxes. You pull shit like this and alienate your users and fellow authors, you get burned. Ask Marat Fayzullin what I'm talking about.

I'm not too worried. the image is already copyrighted by Oscar Controls [oscarcontrols.com], and has been in commercial use for ages, as MAMEworld.net uses it for all their banner advertising. not to mention all the people contacting the USPTO on the MAMEdev's behalf.

I'd just like to point out his personal website [davidrfoley.com], which contains his resume [davidrfoley.com] with his email address (david@davidrfoley.com or david@hyperware.com) and phone number attached.

If MAME and it's logo has not been registered as a trademark, then Foley can apply to register it, regardless of how long it has been used by someone else. If he can slip this one past the TM Office, possibly by overwhelming the existing MAME folks with advertising and publicity, he will have the registered trademark for MAME.

HOWEVER, since the MAME folks have been using said name and logo for years, they will be protected BY LAW from being sued by Foley for their continued usage of the marks. This is one way that these particular intellectual property laws protect you from cretins like him:)

I am not a trademark attorney, but I do IT in an IP firm. This is not legal advice, blah, blah, blah. These laws apply at least in both US and Australia.

Do we have any more substantial information than a small blurb at the top of a emu website?

Even if it is real, he has no hope of winning. Trademarks need not be registered to be protected, [cornell.edu] and I think there is more than enough evidence out there to prove conclusively that the logo belongs to the MAME developers.

Whether MAME trademarked the acronym or not, the logo that Ultracade wants to use is a straight copy off the official MAME logo. Can't it at least be argued that the original MAME image was copyrighted, and Ultracade is infringing on that by attempting to trademark it?

To register the trademark, they had to sign this declaration, which is obviously false.

DeclarationThe undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001, and that such willful false statements may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. 1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and that all statements made on information and belief are believed to be true.

Have you taken this [uspto.gov] into account when claiming your domain name as a trademark?

On another note, having read over the differences between Trademarks and Servicemarks [uspto.gov], I would think that a website would have a Servicemark rather than a Trademark, because of this piece of text: A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.

For example, Microsoft is a Servicemark, Windows is a Trademark. Google is likely both.

Linus Torvalds did not originally register a trademark for Linux. It was first registered by a con man named William R. Della Croce Jr. This slimy disgusting toad was trying to weasel 10% of the profits out of any books and journals that used Linux in the title. A groupd of Linux related companies had to fight this guy in court for a year to get the trademark assigned to Linus

What this shows us is that the fact that a product name exists and is in wide prior use makes absolutely no difference to the idiots at the USPTO. They can't be bothered to do real research. Their attitude is that they should approve everything and let things be sorted out in drawn out expensive court battles. The whole organization should be burned and razed.

One thing this reminded me of is that, in order to actually be assigned a trademark, you have to state under penalty of perjury that you are the owner and first user of the mark and that you are not aware of anyone else using this mark or name. The sleazy guy in this case (read his resume, which someone else linked to, the fact that he has worked in the music industry doesn't help his case much) appears to have submitted someone elses already copyrighted work in his submission. I'm wondering if he even had the intelligence to make his own copy of the image. Looking at the one on the page linked from this article, it's a bit hard to tell if he just yanked a mame image from somewhere and slapped a TM on it or just drew his own. Unfortunately, it looks like he did recreate it with colored pencil or markers and then scanned it. But maybe not. In any case, the original is obviously still copyright the original creator. If he submitted it and also claimed that he was not aware of anyone already using it, then he's perjured himself. Sadly, none of these sleezes seem to face criminal charges from that sort of thing anymore. It should make decent legal ammunition though if the USPTO does what I expect them to do and grants this trademark.

Their attitude is that they should approve everything and let things be sorted out in drawn out expensive court battles.

I have seen a quote to that effect. That is really sick. I doubt Congress would step in because most congressmen are or were lawyers. Lawyers like to stay employed like the rest of us, but they also have powerful people in their profession to back that up with IMO unethical considerations.

He's trying to take away the legitimacy so that his company's product can be the only game in town.
People are starting to realize that he has a crap product that is exorbitantly expensive.
I have some strong ties in the arcade business (operation and distribution) as well as good friends in the emulation community.
When you can get a used DDR machine for less money than one of these things AND bring in more, why bother?

The Ultracade has been pushed on arcades by distributors because they get AMAZING deals on it and make LOTS of markup when they actually sell units to arcades. (A lot of distributors usually shy away from this sort of practice with most games because it's more profitable to "rent" a game out to an arcade and take a cut of the game intake. They do all the service of the machine (including coin emptying) so they can track an unmodified count and it's a good system. They can sell off old machines that aren't bringing in money and keep most of the money IN the business rather than moving through it.) The problem for the arcades is that they're pretty much grabbed by the balls. Their businesses are for the most part dying and old games still bring in enough draw to warrant keeping them around...but they can't devote all the space to multiple cabinets so they just get one of these puppies....

I wish our arcade industry was more like in Asia..where everyone gets the newest thing and you have multiple level/floor arcades and you just keep what brings in money. Times are tough over here though.

Anyway, this guy is just trying to solidify his business and since he has a crap business model, he's trying to bully out the competition while the opportunity to do so is still there. I hope people fight him tooth and nail and his company goes bankrupt.

On the USPTO webpage for this application (here) [uspto.gov] it says that its status is "Newly filed application, not yet assigned to an examining attorney." Anyone can file any trademark -- I could file one for the term "Microsoft" -- and it would get to this stage.

The key is getting your trademark application approved. The main impediment is from either already registed trademarks that are similar in name or from people that file oppositions. The process of filing an opposition is described on this USTPO page. [uspto.gov]

As someone who knows a little bit about trademarks I can say that the individual who filed this is really wasting their time -- the only way he could get and keep this trademark is if no one noticed he filed for it.

It was pretty foolish for the Ultracade guys to have filed for the mark since they clearly knew there was a prior user.

Here's what will likely happen, assuming that neither side just gives up:

Eventually the mark will be published for opposition, unless the examiner at the PTO has a problem with it first. Since the PTO doesn't perform exhaustive searches (relying on the fact that people rarely invest the time and money to get a federal registration without themselves searching thoroughly and taking pains to avoid conflicts with others) it could easily get to this point. MAME will then have a brief window to file a notice of opposition, claiming that they were using the mark in commerce first, and that it is confusingly similar. This'll result in some discovery on both sides, and evidence and briefs being sumbitted to the TTAB, which will make a decision. I have a hard time seeing that MAME could lose this, but it costs money.

Meanwhile, the MAME folks should really be thinking about just getting a federal registration for their mark to make it easier to deter this sort of thing in the future, but again, it costs money for the initial registration, and for periodic affidavits and renewals that would need to be filed every so often for as long as they wanted to keep the federal registration.

Regarding the copyright issue, it's actually less clear. Ordinarily just because some piece of art is a logo, that doesn't make it uncopyrightable. However, you cannot copyright a name, and you cannot copyright mere variations of typography. Since the MAME logo is basically the stylized word 'MAME' it would have a tough time with copyright. A fancier logo would work better. Still, MAME could always try to register and see what happens. It also costs money, but not much.

As for people talking about prior art, that's patents. There's no such thing for trademark or copyright. Try again.

and copy paste this into an email to:TrademarkAssistanceCenter@uspto.gov--------Regarding:

http://tarr.uspto.gov/servlet/tarr?regser=serial &e ntry=76627578

This person (David R Foley) is trying to trademark a copyrighted work. I cannot trademark the mona lisa, so I do not think I could copyright MAME, the name or the logo as they are copyright works of art (both the image and text).

Regarding a trademark application from a Mr David R Foley (see http://tarr.uspto.gov/servlet/tarr?regser=serial&e ntry=76627578 ) I would like to bring to your attention his breach of copyright laws. Please refer to www.mame.net for the original owners. I have asked all those who can vouch for this to contact you in kind so that this matter can be resolved.

Please let me know if you have any relationship with the aforementioned David R. Foley,

I trust that you will treat this matter with all the serious attention it deserves.

10) Termination for Patent Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License as of the date You commence an action, including a cross-claim or counterclaim, against Licensor or any licensee alleging that the Original Work infringes a patent. This termination provision shall not apply for an action alleging patent infringement by combinations of the Original Work with other software or hardware.

So why not try to extend this rule to termination on ANY action against an author or contributor of the work, where the item at issue is part of the Open Source software product, including litigation due to the name of
the original?

Without the specific restriction of the issue
being PATENT infringement.
Someone shouldn't be able to legally take
open source stuff, sue to SHUT DOWN the original
project, or try to supplant them in name, but then continue to use the product on the original license.

It's a huge Betrayal of trust, and it
SHOULD result in termination of the evil
company's rights, as a reasonable penalty,
right?

I hate being the voice of reason around here on Slashdot, but this one hit Fark late last night, and no one that i've found with any story on it whatsoever has actually put any weight towards "going to sue anyone" with it.

Has anyone dropped this guy an email saying "hey, that looks like the MAME logo that you just filed a trademark application for. Whatcha gonna do with it?"

the CEO of commerical multi-arcade kit seller Ultracade has applied to trademark the name and logo of the ubiquitous open-source multi-arcade emulator MAME and is planning to sue MAME's authors.

I must, must, must go RTFM now. This seems just beyond reason - even here in the US where things like this do happen.

I have to admit that this is confusing to me... so, by the same token, could I build a soapbox derby racer, slap on, say, a Datsun logo (assuming that it wasn't trademarked, of course), and then proceded to go after the original logo and concept designers??

Granted he likely gave this same response to everyone else who wrote him (since my original email was basically a troll that deserved being sent to the recycling bin... hey i was angry:D ) but here it is for everyones reference

_____________

Like most things that are spread by rumor, the facts about me, UltraCade Technologies, and the M.A.M.E. emulation system are quite distorted. I will try and educate anyone who cares to listen about the reality of our marketplace and what we are doing and what we are not. Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not legally be obtained. What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors. We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. user groups and forums.

I have been working on emulation technology since the mid 80's when I did work on an emulation project in college. In 1994, while working on games for companies like Sega and Williams, we developed an emulation of the arcade games Joust, Defender and Robotron that ran on a Sega Genesis. In 1996, we started the Lucky 8 project which turned into the UltraCade project. In 1998 we were one of the first companies to acquire the rights to classic arcade games from various publishers. We have licensed games from several manufacturers including Capcom, Jaleco, Taito, Stern, Incredible Technologies, Midway, Atari and more. We have started several projects and built prototypes for companies like Sega, based on technology that was licensed from authors from the emulation community. We have licensed technology from many of the communities programmers, paying them to use their code in our products and demonstrations. We have been the leader of the retro arcade movement, and have invested millions of dollars creating a market for retro games. UltraCade was the first successful multi-game arcade machine combining many of the old classics. We further enhanced the market by creating Arcade Legends, our consumer version of the UltraCade product. We have also paid hundreds of thousands of dollars in licensing fees to have the right to sell our games.

In the past couple of years, there has been a huge wave of resellers competing with our UltraCade and Arcade Legends products. They build a similar style cabinet, install a PC in the machine, load M.A.M.E., and sell it for a very low price. Lower than we could ever offer our machines for sale. How? Quite Simple. They profit by stealing others work. If you look at the web sites, and read the eBay ads they offer machines that "Play over 4,000 Classic Arcade Games" They then try and skirt the law by pretending that they are not promoting piracy of these same 4,000 games with statements like "we don't load the ROMs" but of course, almost all of them do. The others that don't, they provide you with an instruction sheet with a link to several web sites where you can illegally download the ROMs, or provide you with the contact information for a CD/DVD duplication house that will sell you a set of ROMs for all 4,000 games for less than $200. Would anyone really buy this arcade machine if they knew that there was no legal way for them to run over 99% of the games that they were promised, I don't think so, and if you really look at this without emotion, I'm sure you would agree. These companies are simply selling the promise of thousands of games on a machine that can not possibly run them legally. I sometimes hear the argument, "well, I could go on eBay and buy up all of these games and then run it", and while plausible, it certainly would not be anywhere near cost effective, and again, if the customer knew that to legally operate these games, they have to spend thousands of dollars buying legal ROMs I seriously doubt that they would consider purchasing a M.A.M.E. machine. Anyo

The only ethical way to do this that I can see would be to approach the MAME authors, and arrange a contract whereby Ultracade pays for THEM to trademark the name in exchange for an exclusive license to the commercial use of the name (which of course they don't need to actually use).

Any scenario where the trademark doesn't end up in the hands of the people who developed the software and created the name and logo is just asking for trouble down the road.

Many people point to StarROMs and say that they can then sell the games with the ROMs installed. This is not the case either. StarROMs license prohibits the resale of the game licenses, and only the end user can purchase these ROM images, resellers can not.

I guess he's never heard of the "Right of First Sale". I couldn't find the license agreement on StarROM's site, but unless they were extremely clever, such a clause would likely not be legally enforcable (although, IANAL).

This is simply UltraCade Technologies and other publishers doing whatever it takes to protect our commercial interests and prevent other companies from stealing our market...

I wonder what will happen if another company tries to start "legitimately" selling arcade machines? What guarantees do we have that UltraCade is only going to go after "bad nasty pirates"? What assurances do we have that this won't be used to create a monopoly? We have none. In fact, we have the opposite; if UltraCade succesfully trademarks MAME, then they MUST pursue any infringing use of that trademark, otherwise they risk loosing it. This means the authors of MAME will have to enter into some kind of legal agreement with UltraCade, or else stop using the MAME name.

I read your comments at http://www.ultracade.com/mame.pdf. Respectfully sir, the trademark to MAME is not yours. Well reasoned good intentions do not change the basic fact that you are attempting to steal something as surely as the machine vendors you complain about.

If your goals are genuine, there is a right way and a wrong way to go about it. You already know the wrong way. The right way is to solicit a contract from the many authors of MAME that would enable you to hold the trademark in trust for the described purpose of taking action against lawbreaking commercial sellers as you describe.

Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not be legally obtained. What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors. We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. usergroups and forums.

He says they are not trying to claim ownership of MAME, and yet, by filing a trademark, he is quite clearly trying to claim ownership of the name "MAME." If he owns the rights to the games that are being pirated, he can sue on that basis. So as far as I can tell, the only good reason to register the name MAME as his trademark is to force the MAME folks to change to something else. This isn't about his IP rights, it's a form of competition-by-litigation. IANAL.

I have translated Mr. Foley's comments into PlainSpeak(TM), if anyone is interested:

Like most things that are spread by rumor, the facts about me, UltraCade Technologies, and the M.A.M.E. emulation system are quite distorted.

STFU, morons.

I will try and educate anyone who cares to listen about the reality of our marketplace and what we are doing and what we are not.

I will now spin this story to put me in the most positive light without discussing what I'm really doing or why.

Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not legally be obtained.

We are trying to compete in the court room since we aren't doing so hot lately in the open market. And what do you expect? Our competitors are mean...and fat...and crooks. It's not fair!

What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors.

These are not the droids you are looking for. Move along.

We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. user groups and forums.

We only care about how much money we can make. We couldn't care less about you bunch of losers sitting in your mothers' basements typing on your blogs and chatting with other adolescent dipshits.

I have been working on emulation technology since the mid 80's when I did work on an emulation project in college. In 1994, while working on games for companies like Sega and Williams, we developed an emulation of the arcade games Joust, Defender and Robotron that ran on a Sega Genesis. In 1996, we started the Lucky 8 project which turned into the UltraCade project. In 1998 we were one of the first companies to acquire the rights to classic arcade games from various publishers.

I am awesome.

We have licensed games from several manufacturers including Capcom, Jaleco, Taito, Stern, Incredible Technologies, Midway, Atari and more.

We can sell you a bunch of cool games! Sale ends soon! Buy today!

We have started several projects and built prototypes for companies like Sega, based on technology that was licensed from authors from the emulation community. We have licensed technology from many of the communities programmers, paying them to use their code in our products and demonstrations. We have been the leader of the retro arcade movement, and have invested millions of dollars creating a market for retro games. UltraCade was the first successful multi-game arcade machine combining many of the old classics. We further enhanced the market by creating Arcade Legends, our consumer version of the UltraCade product.

Did I mention I was awesome? Well, I am.

We have also paid hundreds of thousands of dollars in licensing fees to have the right to sell our games.

Even though I'm awesome, I'm also a bit of a sucker.

In the past couple of years, there has been a huge wave of resellers competing with our UltraCade and Arcade Legends products. They build a similar style cabinet, install a PC in the machine, load M.A.M.E., and sell it for a very low price. Lower than we could ever offer our machines for sale. How? Quite Simple. They profit by stealing others work.

No Fair! Other people didn't play by our rules and now we can't make as much money! It's not fair, I tell you! They're STEALING! (Well, not really stealing...more like...infringing copyrights...but, that just doesn't have that same ring to it.)

If you look at the web sites, and read the eBay ads they offer machines that "Play o

They then try and skirt the law by pretending that they are not promoting piracy of these same 4,000 games with statements like "we don't load the ROMs" but of course, almost all of them do.

And what exactly will stealing a logo and name do to stop them? He can't copyright the code, so these guys would simply remove all reference to "MAME" from their code and continue to sell it. Totally irrelevant.

I'm amazed at the response of the community, a community that is being whipped into action by the same people who are stealing and profiting from them and they're efforts.

Aside from the irritating use of "they're" (you wanted "their", buddy), what's whipping us into action (here we are, so easily lead astray. And I thought you said you were writing to an intelligent audience?) is the fact that you're trying to steal via copyright a work that has been used for years by another party. No chance this would hold up to a court challenge. Whether or not you plan to sue the authors of MAME is not the primary issue, as you would lose. The issue is theft.

As to the legality of ROMs (IANAL), according to the DMCA, I am entitled to own a backup copy of digital media that I own. If I am unable to create that backup for myself, I can have someone else generate it for me. So if you actually own the cart, then yes you can legally download a ROM image. True, not very cost-effective, but legal.

What I read into this is, these UltraCade guys decide to be the "defenders of good" and apply to own the trademark for MAME, thinking that somehow, MAME is synonymous with the UltraCade name/product. With their newly appointed power, they go out and sue everyone who is distributing illegal ROMs in the name of those people who own the original works. Were they at all elected/nominated/asked to do this on behalf of even one ROM owner? If approached, would any ROM owner actually want UltraCade to represent them (in essence, to be a middleman between the client and lawyers - with the appropriate fees, I'm sure). Do they plan on paying the original ROM owners any of the awards at all?

I'd certainly feel better about this if UltraCade were a non-profit organization or at least a representative body, and not just some company who's figured out an alternate revenue stream.

Maybe the USPTO should have some sort of a public correspondence site where one could reference a TM or C or P by its number and e.g. point out that this same thing has been done for the past twenty years.

On the other hand, maybe with all the inevitable "M$ is t3H suX0r, dnut garnt n-A PATENTS 2 theys you a55hat!" comments isn't worth it.

Of course it's worth it! Sure, you may get a fair amount of crapflooding, but in this case you only need ONE good pointer to prior use. As it is the USPTO takes a lot of crap after letting ridiculous stuff slip through. Putting up a public correspondence site will help them with their image as well as making research easier for at least some applications.

Besides, if we leave the information properly filed in THEIR system, they have no excuse to be unaware of it.

Let me fill in a little of the picture. There is not one giant section of law called "IP Laws." You have 3 basic branches, copyright, patent, and trademark. You also have tradesecrets and a couple other things. Without copyright, the GNU license that allows Linux to only be distributed with access to source code would not be enforceable. There would be no requirement for anyone modifying and publishing a new Linux to publish their changes. Without copyright everything is essentially the BSD license, whi

The reason it's bad is because it kills the public domain. Since the Bono act, which made this automatic copyright thing happen, nothing is automatically entering the public domain. The public domain is actually dieing as a concept in America. Consider this: the point of copyright is to encourage the creation of new works. With the Bono Act the government extended the copyrights on hundreds of thousands of already published works. They were already published. How could increasing their protection time under copyright law possibly encourage the creation of new works? The creators of these works saw how long they were protected, agreed to it, and spent the resources to create the works. Going back and giving them a longer protection is a slap in the face to everyone. It is a direct subsidy to media companies worth billions.

Using your logic, many things -- such as the Coca-Cola bottle shape, or the distinctive sound of a Harley motorcycle -- would have been public domain a long, long time ago. But they're not.

You overlooked the original poster's "should" and "as intended by the framers" reference. When the United States was founded, IP concepts were only supposed to last for "limited times," originally about 21 years. Having copyright, trademarks, and patents last for indefinite periods of time was introduced roughly at the turn of the 20th Century as a side effect of the legal and economic fallout of the Industrial Revolution and the US Civil War. If the US was still treating IP as it was originally implemented, Disney, Coca-Cola, et al, would already be public domain.

The question at hand now (and is argued here at/. ad nauseum) is that if this indefinitely long "IP monopoly" state is really a good thing for a culture or not... One of the key reasons IP law was changed was to encourge R&D in companies since modern manufacturing and service expenses are dominated by large up-front fixed costs, as opposed to the older "artisan" system where labor and unit costs were a larger proportion of the equation. The debate is if this legal change has given large organizations (and their legal teams) too much power at the expense of smaller organizations and individuals.